Fixed-Term Marriage

Unlike many person’s, I am never made uncomfortable by doubts and misgivings in the problems of Islam, despite my attachment to and belief in it. Rather, in the depth of my heart I feel glad, because I believe and have experienced during my life that whenever and howsoever any aspect of this pure, divine code of life is assailed, it displays itself with more force, vigor, clarity and splendour.

The distinct feature of truth, of course is that doubt and disbelief help to make it all the more vivid. Doubt precedes belief, and indecision is the source of investigation. Zindah bidar [1] quotes from al-Ghazali’s treatise Mizanul-‘amal: “…..The utility of our exhortations is only this much that you may begin to have misgivings about your time-ridden traditional conceptions, for indecision is the basis of investigation and one who does not doubt is not reflecting on things in the right way. One who does not look in the right way does not see things well, and such a man lives in blindness and confusion.”

Let them speak, write, hold seminars and protest till, in spite of themselves, they will become a means of making clear the realities of Islamic teachings.

One of the brilliant laws of Islam, according to the Ja’fari (shi’ite) school, which is the formally established sect in our country, is that marriage may take place in two years: permanently or for a fixed period.

Permanent and fixed-term marriages are alike in some of their arrangements and different in certain others. One of the features that distinguish between them is, in the first instance, that in fixed-term marriage a woman and a man take a decision that they will undertake a marriage for a fixed period, and at the end of that period, if they are inclined to extend the period, they may extend it, and if they do not wish to do, they may separate from each other.

The other feature is that they have more freedom in the settling of terms and conditions according to how they wish. For example, in a permanent marriage a man is responsible, whether he likes it or not, for daily expenses, clothing, dwelling and the other necessities of life, such as medicine and medical treatment, but in a fixed-term marriage, the couple is joined by the free contract that was agreed upon by them. It is possible that the man may not wish, or cannot afford, to bear these expenses, or that the woman does not wish to use the money of the man.

In a permanent marriage the wife, whether she likes it or not, must accept the man as the head of the household and carry out what he says in the interest of the family situation, but in a fixed term marriage everything depends upon the terms of the agreement they conclude between themselves.

In permanent marriage, the wife and the husband, whether they like it or not will have mutual rights of inheritance with each other, while in a fixed-term marriage this is not so. Thus the real and essential difference between the fixed–term and the permanent marriage is that the former, as far as limits and conditions are concerned, is “free”, that is, it depends upon choice and the contract between the two parties. The fact of the marriage being temporary gives to both parties a sort of liberty, because (with regard to the fixation of the duration of the agreement) they can exercise their opinion.

In the case of permanent marriage, neither of the two parties (without the consent of the other party) has a right to exercise restraint in having children or to practice birth-control, but in fixed-term marriage, the consent of the other party is not necessary. In fact, this is another sort of freedom that has been given to the couple.

The children born to the couple who have temporarily married are in no way different from the issue of a permanent marriage.

Mahr (dower) is also a pre-requisite in a permanent marriage as well as in a fixed-term marriage, with the difference that in a fixed-term marriage non-specification of the amount of the mahr nullifies the marriage, whereas in a permanent marriage the marriage itself not nullified and an unspecified mahr can be arranged.

In permanent marriage, the mother and the daughter of the wife, and the father and son of the husband are forbidden (for marriage) and are mahram; [2] it is similarly the case with the above relations in temporary (fixed-term) marriage. Besides, just as proposing marriage to a permanently married woman is prohibited, so is it also in the case of a fixed-term married woman; just adultery with a permanently married woman makes her prohibited to the adulterer forever, so also does it in the case of a temporarily married woman; just as a permanent wife has to observe a period of iddah (during which she may not marry) after divorce, so a temporary wife also has to observe a period of iddah after the termination of the agreed period of the marriage or its dissolution. There is this much difference, that the period of iddah for a permanent married woman after divorce is (the time of) three periods of menstruation, while for temporarily married woman it is (the time of) two period of menstruation or forty-five days. In the case of a permanently married wife, a man cannot, while she is alive, marry her sister. In the case of a fixed- marriage, also, two sisters cannot be married to the same person at one time.

These are some of the relevant principles of temporary or terminable marriage as mentioned in Shi’ite jurisprudence, and our Civil Law has observed them to the latter.

We, of course, uphold this law which has the above distinctive features. If our people have, in the name of this law, misused it and are still misusing it, the law itself is not at fault. If this law were nullified, the objectionable practice would not stop; only the form would he changed. Besides, there would be hundreds of evils that would result from the annulment of this law. We must not launch an attack on the spirit of the law, when we should be reforming and awakening man, simply because of man’s lack of capability and fitness for reform, and then exonerate man and hold the law responsible.

Now, let us examine what necessity there is for a law in the name of fixed-term marriage, when there is already a law of permanent marriage? Is a fixed-term marriage, as the contributors to Zan-e ruz have written, incompatible with the dignity of a woman as a human being, and against the spirit of the Charter of Human Rights? Is not temporary marriage, if it ever was a necessity at all, a necessity of a by-gone era? And is it not true that the contemporary life-style, the conditions and demands of present-day life, argue against it?

We shall examine this point under two headings:—
a) Contemporary life and fixed-marriage.
b) The defects and evils of fixed-term marriage.

Contemporary life and fixed-term marriage

As we already know, permanent marriage creates great deal of responsibilities and duties for the couple. This is why a boy and a girl in their early youth, when they enter the period in which natural puberty brings them under the pressures of the instincts, are not ready for a permanent marriage. The characteristic feature of our modern age is the lengthening of the span of time between natural puberty and social maturity, when one becomes capable of establishing a family. If, in the simple old days, a boy at the beginning of his natural puberty could take up a vocation in which he could still till the end of his life, this is no longer possible. A student who successfully passes through his education in primary school, secondary school and university without any interruption, and gets his school certificate and passes the university entrance examination, will graduate at the age of twenty-five. Surely it will then take three to four years to arrange things to get married permanently. The same applies in the case of an educated girl who has to pass through all the stages of study.

Modern youth, the time of puberty, and the onset of textual activity:

If you ask a boy student of eighteen years of age who sexual ardor is naturally at its height, to get married permanently, people would laugh at you. The same is the case with a girl student of sixteen. It is not practically possible for this category of people to burden themselves at such an early age with the responsibilities of permanent marriage and commit themselves to a life with the many duties and obligations towards each other and also towards the children which they will have.

Monasticism for a fixed period, sexual communism, or fixed-term marriage:

I ask you how, in these circumstances, with these natural instincts, should we behave? Is nature prepared to delay the advent of puberty till we complete our education, and bring our sexual instinct to stand still, because our modern way of life does not permit us to marry at sixteen or seventeen years of age?

Are the young ready to undergo a period of temporary asceticism and put themselves under the strain of rigid austerity till such time as there may arise an occasion for permanent marriage? Suppose a young person is prepared to undergo temporary asceticism, will nature be ready to forego the formation of the dreadful and dangerous psychological penalties which are found in the wake of abstention from instinctive sexual activity and which psychiatrists are now discovering?

There remain two alternatives only. We may leave the young to themselves and ignore what they do. We may allow a boy to have unlawful sexual relations with hundreds of girls, and allow a girl to have unlawful relations with tens of boys and have so many abortions. In other words, in practice, we accept sexual communism, and because we have given liberty to the young man and young woman equally we have satisfied the spirit of the Charter of Human Rights. We say this, because, according to so many persons lacking foresight, the spirit of the Charter of Human Rights is that if a woman and a man are to leap into the valley of Gehenna, they should leap together, hand in hand, shoulder to shoulder.

Can such young men and women, who have had sexual relations with a large and unlimited number during their student life, turn out to be new men of life and women of the family when they become permanently married?

The other course is fixed-term free marriage. Fixed-term marriage puts the limit on a woman that she must not be the wife of two men at the same time. Evidently such a restriction upon the woman itself necessitates a restriction upon the man. When every woman has exclusive attachment to a particular man, every man will necessarily be attached to a particular woman, excepting in cases which the number on one side may be more. [3] With this arrangement a young man and woman may live through the time of their education without falling back upon temporary asceticism and enduring its penalties, and without falling into the abyss of sexual communism.

Experimental marriage

The occasion for such marriage is not confined to the period of study. It may arise in other circumstances too. In principle it is possible that a man and a woman who want to marry permanently, but have not had the opportunity to get to know each other well enough, may marry temporarily for a specified period as an experiment, If they are fully confident and satisfied with each other, they may give permanence to this marriage, otherwise they can separate.

I ask you why Europeans think it necessary and unavoidable to maintain a number of prostitutes in a specified area in every town under the control and observation of the state. Is there any other reason except to make sure that the numbers of bachelors who cannot afford to marry permanently do not become a great danger for families?[4]

Russell’s views on fixed-term marriage:

Bertrand Russell, the well-known British philosopher in his book Marriage and Morals writes: “So long as the virtue of respectable women is regarded as a matter of great importance, the institution of marriage has to be supplemented by another institution which may really be regarded as a part of it — I mean the institution of prostitution. Everybody is familiar with the famous passage in which Lecky speaks of prostitutes as safeguards of the sanctity of the home and of the innocence of our wives and daughters. The sentiment is Victorian, and the manner of expression is old-fashioned, but the fact is undeniable. Moralists have denounced Lecky because his remark made them feel furious and they did not quite know why, but they have not succeeded in showing that what he said was untrue, The moralist asserts, of course quite truly, that if men followed his teaching there would be no prostitution, but he knows quite well that they will not follow it, so that the consideration of what would happen if they did is quite irrelevant” (p.97)
This is a Western formula for finding a remedy against the danger to men and women who cannot afford to marry permanently, and previously we saw the formula which Islam has put forward. If this Western formula be accepted and put into practice and a group of unlucky women are specifically allocated for fulfillment of this “social duty”, will woman then rise to her real position and be given human respect, and ,will the spirit of the Declaration of Human Rights be satisfied?

Bertrand Russell has written a full chapter on the subject of experimental marriage in his book Marriage and Morals. He says:

“Judge Ben B. Lindsey, who was for many years in charge of the juvenile court at Denver, and in that position had unrivalled opportunities for ascertaining the facts, proposed a new institution which he calls ‘companionate marriage’. Unfortunately he has lost his official position, for when it became known that he used it rather to promote the happiness of the young than to give them a consciousness of sin, Ku Klux Klan and the Catholics combined to oust him. Companionate marriage is the proposal of wise conservative. It is an attempt to introduce some stability into the sexual relations of the young, in place of the present promiscuity. He points out the obvious fact that what prevents the young from marrying is lack of money, and that money is required in marriage partly on account of children, but partly also because it is not the thing for the wife to earn her own living. His view is that young people should be able to enter upon a new kind of marriage, distinguished from ordinary marriage by three characteristics. First, there should be for the time being no intention of having children and that accordingly the best available birth-control information should be given to the young couple. Second, that so long as there are no children and the wife is not pregnant; divorce should be possible by mutual consent. And third, that in the event of divorce, the wife should not he entitled to alimony. He holds, and I think rightly that if such an institution were established by law, a very great many young people, for example students at university would enter upon comparatively permanent partnerships, involving a common life, and free from the Dionysiac characteristics of their present sex relations. He brings evidence to hear that young students who are married do better work than such as are unmarried. It is indeed obvious that work and sex are more easily combined in a quasi-permanent relation than in the scramble and excitement of parties and alcoholic stimulation. There is no reason under the sun why it should be more expensive for two young people to live together than to live separately, and therefore the economic reasons which at present lead to postponement of marriage would no longer operate. I have not the faintest doubt that Judge Lindsey’s plan, if embodied in the law, would have a very beneficial influence, and that this influence would be such as all might agree to be a gain from the moral point of view.” (ibid. pp. 107— 109)

That which Judge Lindsey and Russell call ‘companionate marriage’, though it is a little different from temporary Islamic marriage, clearly shows that thinkers like them have gone to the root of the problem and are satisfied on the point that the usual permanent marriage is not by itself sufficient for social requirements.